Suing Your Landlord and State and Superior Court Requires Work

If you decide to sue your landlord for more than $15,000, you have to do it in State or Superior Court. The Defendant may move it to federal court under certain circumstances. Regardless, once it is moved to "Big Girls' Court", you can't just sit back and let the attorney do all the work. Some of the work will be yours exclusively. Even the optional information gathering may cost you in the end of you just sit back and do nothing.

After the answer and before trial, the landlord is likely to send written questions, document requests, and requests for admissions. For the written questions, many are personal questions that the lawyer cannot answer because they relate to things like social media accounts, prior cases, education, etc. It may take you hours or even a day or two to answer these questions and collect documents.

If you claim physical or mental harm or income loss, you will have to provide a history of both. There is no getting around most of these invasive questions and document requests if you make these claims. However, it is easier and cheaper for you to obtain these yourself. If your lawyer has to subpoena the documents and pay for copies, that will take away from the amount of money you will receive at the end. Moreover, if you decide to procrastinate or just not do it, your case may be dismissed or your attorney may get fed up and withdraw from your case. This will occur even if your case is great.

The Eviction Process in Georgia for Failure to Pay Rent

The process for moving from failure to pay rent to ejectment for residential leases is a multi-step process: 

Pay Rent. 

In most leases the rent is due on the first with a 5 day grace period. 

Pay or Quit Notice 

If a tenant fails to pay and the was entered into or renewed before July 1, 2024, the landlord must give three business days to pay.  The notice to pay or quit must be posted on the door in an envelope. The landlord must also comply with any lease notices. 

Court Filing - Dispossessory

If the tenant does not pay or quit, the landlord can start the dispossessory action by filing in the magistrate court (usually) a dispossessory affidavit. 

During this time, during the failure to pay rent case, the landlord cannot accept money, even partial payment.  However, the tenant should keep the money and not spend it. 

Tack and Mail or Service.

In these type cases, the tenant does not have to be personally served.  The court stamped dispossessory affidavit and summons can be placed on the door (tacked) and mailed. 

Answer and Counterclaim

The tenant will have 7 calendar days to respond with an answer (and counterclaim if appropriate). I recommend the tenant consult with an experienced tenant lawyer to discuss his or her rights, defenses, and claims.  However, if you cannot do so, file the answer to meet the deadline.

Writ for No Answer

If a tenant misses the deadline, the landlord can apply for a writ.  Once the judge signs it,  the Marshals/Sheriffs will be scheduled to come for ejectment day. 

Court Date

On your court date, be on time, have your exhibits printed, and have your witnesses ready. Phone evidence is often rejected because of the germs that are on phones.  Many judges don't want to touch phones.  I know I don't want to touch an opposing party's phone.

Once the docket has been called, you will be told to go out to speak with your opponent to exchange exhibits and to discuss settlement.  Some courts have mediators to discuss cases with parties in an effort to resolve them. 

Hearing - Order

After both sides argue their case, the judge will decide who wins and for how much. 

If the landlord wins, the tenant will have seven days to vacate or the landlord will apply for a writ. 

If the tenants win, they can stay until the lease runs our.

Ejectment 

If the landlord wins and the tenants don't vacate, the landlord will obtain a writ and schedule a date for the marshal/sheriff to come to the property to keep the peace while the movers eject the tenants. Each department has a certain number of people a landlord must have to move the tenant out of the premises and onto the lawn, sidewalk, or driveway.  After everything is out, the landlord should change the locks. 

 

For Landlord-Tenant Actions, Should You Hire a Lawyer Even If You Failed to Pay Rent

The short answer is it all depends. 

If you failed to pay rent because you lost your job or had a family emergency and cannot catch up on back rent, you probably don't need an attorney.  You should probably start to pack, leave, and turn in the key before the dispossessory action is filed, unless you have a large legitimate counterclaim or your landlord is willing to agree to new terms in writing. 

However, if you have back rent, want to stay in the property, and have a counterclaim for failure to repair, an attorney may be a good investment.  Also, realize lawyers in these type cases are meant to guide you through the process and speak on your behalf to get a settlement. 

Going into court

If the matter cannot be settled, an attorney may not help you if you don't have any money to catch up on rent.  The key is put the money aside once the landlord refuses to accept rent.  Also, make sure any agreement you sign states there is a disputed balance of fees, fines, and penalties that the parties have agreed to zero out because of a compromise.  Once  that agreed upon balance has been paid, there should be a provision that says the matter is dismissed with prejudice. 

LIMITED RESIDENTIAL TENANT REPRESENTATION

 To streamline my practice as I move to reduced office hours, I will limit my residential tenant representation to those tenants who rent from the following:

This is for residential tenants only:
To streamline my practice, I am accepting new cases if your landlord is one of the following:

1. Invitation Homes (and its subsidiaries);
2. Tricon
3. Pretium Partners
4. Home Partners of America
5. Progress Residential
6. First Key Homes
7. AMH
8. Amherst Holdings
9. PMI Georgia
10. Excalibur Homes
11. Evernest Property Management
12. Greystar

I will still represent small landlords and all commercial landlords and tenants.

NEW TENANT FEES FOR JANUARY 1, 2025

 Unfortunately, the Firm has decided to cut its representation of residential tenants significantly.  It is focusing on tenants whose rent are $3,000 and above.  I used to take a significant number of lower income cases, but that stops effective January 1, 2025.   

My new fees for residential tenant cases in State or Superior Court will range from $350+/hour with an initial retainer of at least $5,000.

If you want to take depositions or require subpoenas, the retainer will go up significantly.  Depositions cost about $3,000 for a 2-3 hour takedown. 

Also, motions will drive up costs several thousands dollars, and mediations will cost $250/hour for the mediator and $350/hour for me.

I will have more time to take these time intensive cases, but you will have to determine if your damages are worth the out of pocket expense.  This analysis will required one or two office or Zoom conferences at $250/hour with a two hour retainer of $500.00.

Once the case starts, the Clerk's Office and the Judge control the calendar.  Lawyers have limited ability to force their cases on the calendar. Therefore, mediation and settlement might be the pragmatic and efficient way to resolve the case.  However, if a bench or jury trial is needed, expect to spend at least $24,000 between the pretrial order through to post-trial motions. 

Furthermore, nothing is guaranteed, even if you go to trial and win.  A significant jury verdict is likely to result in post trial motions and/or an appeal.  Appeals are extremely expensive.  My rate for appeals are $450/hour with a $25,000 retainer. Again, overall, the best option in most cases is to go to the table and try to resolve the matter through settlement. 

Eviction Actions in Cobb County Magistrate Court

 Last week, I was in Cobb Magistrate Court in a dispossessory action. Things have changed over there.

The following are just a few things you should know if you are served with an action to evict you.

1. Although the form for the landlord is online in the Cobb County Magistrate section, the form for the tenant isn't. This is unfortunate. However, there are still other counties that have the check box form online, including Cobb County. The check box form gives you ideas on defenses you can use. It also has a counterclaim section that will assist you in completing that area if you have a counterclaim.

2. If you walk in, the tenant form has a lot to be desired. If you want to file a counterclaim, make sure you attach an additional sheet with details and amounts. Again, the checkbox form answer sheet that is still online in other counties will give you ideas on how to present your counterclaim.

3. There is a nonprofit to give you some advice before signing a settlement agreement, but unless you have zero defenses, call a lawyer and take advantage of firms' free consultations before answering and before going to court.

4. Most times, hiring a lawyer to be with you in court should assist you in navigating what is clearly a stressful day. Paying may allow you to stay on the property until the end of the lease or deduct the claimed rent and fees.

In my case, I saved the client over $2,000, and that savings was after my attorney's fees were netted out. Additionally, she was able to stay on the property. Remember, if you want to stay on the property, you negotiate at a slight disadvantage, but you can have a good outcome nonetheless.

All reactions:

11

Leaving a Rental Property Early as a Residential Tenant in Georgia

 There are numerous reasons to leave a property earlier than expected.  However, regardless of the reasons, the tenant and landlord should agree on termination provisions. 

1. A vast majority of leases require both parties to the lease to place their agreements in writing and have it signed by both parties.  Otherwise, the parties may be subject to damages.  

2. Even if the termination is based on constructive eviction, the tenant should consult an attorney.  Leaving early is risky.  The property has to be objectively uninhabitable, and you take the risk of having a court determine the place was not in fact uninhabitable.  An experienced tenant lawyer should be able to walk you through the thought process so you can make an educated decision.

3. If you claim the rental property is uninhabitable because of mold, hire a mold testing service who will complete a report and testify at trial, if necessary.  Taking pictures of a black substance is usually not enough to prove mold.  If you are claiming health issues caused by mold, you will need to take that mold report to the doctor to confirm that mold caused your health problems.  It will also be necessary for your doctor to provide a report that complies with the evidence rules. 

4. If there is an early termination provision in the lease, make sure you comply with that provision to the letter.  This requirement includes providing notice to the landlord in accordance with the lease. 99% of the time, oral notice and texts are deemed insufficient notice. 

5. If you have given proper notice for a date certain, you should coordinate an inspection and take pictures and videos of the rental property (inside and out).  The landlord has the right to refuse this request, but that does not waive your right to inform them that you have vacated, the keys and other items are where the parties agreed, in the drop box, or on the kitchen counter.  Just because your move out date is September 30th, doesn't mean the landlord can rely on that date.  You, as the tenant, have to tell them after you moved out that you have vacated.  This is so because some tenants say they will move on September 30th, but stay anyway.  You don't want to be charged for an extra month because you failed to notify the landlord that you have turned over possession.   

If you have further questions, contact The McGill Law at (770)367-1234 or demandingjustice@gmail.com.

SAVING THE INNOCENT LANDOWNER FROM TITLE FRAUD IN GEORGIA

 Today, I went on the Gwinnett Courts website and saw a warning to homeowners that alerts them to title transactions.  It's at gwinnettcourts.com  .  Kudos to the clerk and to Georgia for making the homeowner who goes to the site aware of the problem.  

However, what percentage of homeowner visit the site in Gwinnett?  

Even if they did a flyer drop to reach the elderly, would that be enough?

Is this measure enough to protect a vast number of victims?

Some may say the laws need to catch up with the thieves.  The entire transaction needs to be slowed down. True owners should be able to go into court within 12 months to challenge the transfer, lien, and fraud perpetrated by scammers. Between innocent homeowners and lending institutions, the innocent homeowner should be protected.   

There are other protections that owners should be allowed that are similar to those are afforded credit card holders whose credit cards are stolen and used.  There is already a model to this delayed full title transfer.  In tax foreclosure sales, the purchaser of that property knows there is a period that the owner can restore the property.  The only difference is once the "innocent/victim" shows fraud in Court, the responsibility falls on the transferee/lender to chase down the person or company that scammed them to obtain their funds.  If the lender or transferee is left "holding the bag" on these fraudulent transfers, greater care will be taken to confirm the validity of the transaction. 

If those holders are allowed 30 days to challenge transactions, there is no reason that land and homeowners shouldn't be given 6-12 months to restore heir status. 

Review Your Will, Power of Attorney, and Living Will

Now is the time of year to review your will, living will, and power of attorney. If things have changed, including births, deaths, marriages, asset purchases, friend disputes, or other life changes, call the lawyer who drafted it to get the will or POA modified.

You don't want a former friend to have control of your assets or control of your medical care. You definitely don't want to leave out that cute little grandchildren who was born in 2023.

Initial Consultations at the Firm

When you call the office for an initial consultation, please be prepared to give your full name and landlord's name. This gives me the chance to run a quick conflicts check. At least once a year, I receive call from both the landlord and tenant. In those rare instances, the second call will have to terminated. 

After those preliminaries are done, you can summarize the problem. Because the initial call is 5-10 minutes, I will interrupt with key questions that will help me assist you before time runs out. 

This is key because follow up calls are charged. For 2024, charges for follow up meetings are as follows:

Call - $175 for 30 minutes

Zoom - $185 for 30 minutes

Office - $200 for 30 minutes

If you want me to review a lease to see if you have a case, the charge to review the document is $200 (flat fee) for residential leases and $350/hr for commercial leases

My hourly rate for most cases is at least $400/hr.

I offer flat fees for basic tasks and Magistrate Court cases. Flat fee cases must be paid up front.

 

You Tube Landlord for Entertainment Purposes Only

A few days ago, I ran across this YouTube channel. It is entertaining, but don't follow his advice. 

In the video below, he runs through apartments that have been trashed. He doesn't take the damage checklist seriously. Instead, he says, the pictures show how bad it is. In Georgia, that wouldn't fly.

Landlord Damage Video

Georgia Landlord Requirements

In Georgia, a landlord must do a move-out inspection within 3 business day and complete the checklist (with estimates). Pictures and videos should be taken. The breakdown must be Sent to the former tenant because she has the right to return to the unit to see the claimed damage and challenge anything.

Within 30 days, send any portion of the security deposit with a breakdown that explains what is owed in unpaid rent and damages. I recommend using that same move out list to itemize.

If a painter has to paint several rooms, demand a breakdown of cost for each room. That goes for all repairs, including carpets. This breakout ensures you will get something if a judge decides you cannot be reimbursed for certain rooms or certain repairs. 

Giving an Attorney a Referral Does Not Mean You are Involved in the Case.

It is great when any business owner gets a referral from a past client or customer. In a normal retail setting, it is natural to get updates on the person's satisfaction with the services or product.

However, in the legal and medical field, just stay out of the relationship. Once you refer someone, you have no right to receive updates from the professional. Of course, you can always ask the customer about the medical service and status, but stay away from the attorney-client case if it is in litigation.

Attorney-Client Privilege and Work Product

The law protects communications between attorneys and clients so the clients can freely discuss cases, and the lawyers can freely give advice, collect information, and formulate strategies. However, the privilege can be waived by the client when he insists on (1) bringing in third parties on phone calls and meetings; (2) disclosing conversations or strategies on social media; or (3) discussing advice with friends and family. During discovery, opposing counsel can find out the identity of those individuals who had to stick their noses in litigation. This could be disastrous because once the privileged is waived, opposing counsel can learn strategies and topics of communication. 

Settlements

The nosy friend or family member could be a disaster to your settlement. Settlements are often confidential. This means the parties are prohibited from discussing the terms of the settlement. A persistent and intrusive person may push you in disclosing the terms. If your opponent learns of the settlement violation, you may be ordered to return the settlement and pay attorney's fees. If the person wants to know what happened, tell him it's been resolved and shut down the topic.

Don't Blindly Use ChatGPT for Legal Briefs

This is a warning for lawyers and pro se litigants. Don't use Chat GPT unless you go over everything with a fine tooth comb. In this instance, AI just made up cases to support its legal position.

https://twitter.com/DrEliDavid/status/1662469873434329089?t=RHN3uHUuxUWC9KNvqXPMpQ&s=19

The Firm Does Not Represent Sovereign Citizens

For those who don't know, there are a small group of people in the US known as sovereign citizens. Apparently, they believe each individual is its own government and doesn't have to follow the laws of the US govt, states, or local entities.

Those folks don't really have an impact on the rest of us. If you believe this nonsense, don't call me for representation. How can a civil lawyer negotiate on your behalf or represent you in court when laws don't apply to you?

Moreover, any legal theory that bears no connection to the laws of this country cannot be used by lawyers without the possibility of court sanctions or bar complaints. In other words, you are cannot be represented by an ethical lawyer. So, good luck in presenting your sovereign citizen theories during negotiations and in court.

2023 - New Prices & Hours.

Instead of retiring from the law, I will be limiting my office hours and case load.

My price sheet for 2023 can be obtained via an email request at demandingjustice@protonmail.com.

Also, the Firm will no longer perform free screening consultations. Instead, there will be a $50 charge for the first 15 minutes to review the facts of your case. Longer reviews will be charged at $300/hr.

Lawyers Must Challenge Their Clients' Positions and Evidence

 When you visit a lawyer and during the representation, you should expect counsel to challenge your position and question your documents. If your lawyer isn't doing that, she's not preparing you for the tough questions you will face in court and during your deposition. Even during mediation, a skilled mediator will question your position.

This should be expected because your opponent doesn't hand you money in non-car accident cases without a fight. You have to support and defend your position. Your attorney should act as a gatekeeper to prevent you from making a fool of yourself on the stand. 

Therefore, preparation at the beginning is key. Take the list of items presented to you seriously. Get documents to your lawyer as quickly as possible. The more documents you have to support your case, the better.  Answer your interrogatories and produce your documents as early as possible. 

Most importantly, don't be offended when you are cross-examined by your lawyer on your theories of the case. It will show the holes in your case and prepare you for the key stages in your litigation.

Landlords and Tenants Should Prepare for the Economic Downturn

As the economy continues to decline, landlords and tenants should review different economic scenarios to determine if they're ready for 2023.

For tenants, do you have a recession proof job? If so, you may not have to worry about defaulting on your lease. For everyone else, see if your landlord will agree to a 3 or 6 month lease period once your lease is scheduled to renew. A shorter period may suit you better to protect you against default just in case you lose your job. 

For landlords, do you have a repair/replacement fund for leaky roofs and busted hot water heaters? Can you survive another prolonged period when you don't collect rent as courts and sheriffs slow walk dispossessory actions and evictions?

Also, both parties should know their rights under the lease and the law. A quick or not so quick evaluation may be the answer before trouble comes.  The Firm would be happy to evaluate your document in a 15 - 60 minute conference by phone or Zoom. 

REPAIRS

You don't know how many calls and emails I receive per month from tenants who are shocked that they cannot withhold rent when the landlord doesn't repair. 

At the same time, landlords are shocked they have to repair when the tenant doesn't pay rent.  

In residential leases, a landlord cannot contract away its legal obligation. However, if a landlord refuses to repair, the tenant can use repair (pay) and deduct to repair the property. I recommend tenants research this option before using it. 

In all, there are several factors both parties should consider before entering into a new lease or letting an old lease auto renew. If you are old enough to remember the first great recession, you can easily learn from any mistakes and seek to avoid them. Otherwise, prepare for the worst and hope for the best. 90% of large CEOs and bankers expect the second great recession will hit us 2023 and continue into 2024.

How Not to Act in Court

If you decide to represent yourself in court, do not act like this woman.

or this man:

https://twitter.com/GAbusiness_firm/status/1742708090074488839?t=YryRDUPwpRRiLohVRAgmEg&s=09

A/C Problems This Summer

During the summer, I receive at least 10 calls or emails a week about a landlord's inability to provide air conditioning. I normally don't handle these issues because of time. 

Channel 46 provided good suggestions for those who are having these problems, but can't find a lawyer. 

Channel 46 - Segment

For landlords, you may want to provide a temporary A/C unit until the matter is resolved. The $100-200 unit may save you thousands of dollars if the tenant sues you.

Rent Control - A Bad Idea?

Many Atlanta tenant advocates are screeching rent control as the solution for high rents in the area. They point to cities that can best be described as run down crime holes to support their position. 

John Stossel spoke to rent control advocates and asked them questions about their position. His video is an interesting insight on why rent controls harm renters.

Stossel - Rent Control Segment